The Washington Post‘s David Ignatius has a really thoughtful new column summarizing the big questions surrounding the President-Elect, Russia, hacking, and the election. As part of one of the four questions (“why on this night…”), Ignatius wonders if the various contacts between Trump subordinates and the Russian government (especially conversations between General Flynn and the Russian Ambassador to the United States) violated the Logan Act — a 1799 (what we in the legal business call “old”) statute that makes it a crime if a U.S. citizen,
without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…
I am not an especially big fan of the Logan Act either in general or in contexts like these — where it is raised as a potential basis for investigating / prosecuting elected officials. As I explained in a 2015 Lawfare post, there are three different legal problems, two of which are structural, and one of which is specific to contexts like this one. To the structural problems, the Logan Act predates the Supreme Court’s 20th-century invigoration of the First and Fifth Amendments, which, between them, do not look too kindly on either content-based restrictions on speech (which the Logan Act clearly is), or criminal laws that do not clearly articulate the line between lawful and unlawful conduct (which the Logan Act may well not do). The Logan Act also may be the textbook case for the defense of “desuetude” — a claim that a criminal statute has lapsed because it has never been enforced (which may simply be another form of the Fifth Amendment vagueness argument alluded to above). Indeed, there’s been exactly one indictment in the history of the Logan Act — in 1803. And no convictions.
Finally, in this context, specifically, the statute requires the perpetrator to be acting “without authority of the United States.” Of course it’s true that, at the moment, General Flynn is a private citizen, and so he is, literally, exercising no formal government authority. But he’s only in this position because, as of January 20, he will be exercising government authority. And it seems to me that the spirit of the Logan Act would not extend to preventing the President-Elect (and his subordinates) from taking steps to enable the exercise of the authority to conduct foreign affairs that they will soon formally possess — and that the electorate has already chosen to bestow upon them.
Of course, this is all academic; no one is seriously going to consider launching a Logan Act investigation of General Flynn (or anyone else involved in the transition), whether between now and next Friday, or, for sure, thereafter. But it’s also, in my view, an unhelpful distraction: We should generally not be bothered by the idea that part of a presidential transition includes the President and his team setting the stage for the conduct of their foreign policy. Focusing on a process objection in this context, however academically and historically intriguing, only diverts attention from the far more serious and deserving substantive objections to the contours and purposes of and catalysts for that policy.
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